Former of justice, Raphael Kasambara, and his co-convicts, Macdonald Kumwembe and Pika Manondo, have filed a notice of appeal against their recent conviction in conspiracy to murder and attempted murder cases connected to the 2013 shooting of former budget director, Paul Mphwiyo.
High Court Judge, Michael Mtambo, sitting in Lilongwe on July 21 this year, convicted Kasambara of the offence of conspiracy to murder and Kumwembe and Manondo of the offences of attempted murder and conspiracy to murder.
Kasambara had already vowed to appeal against the guilty ruling at the time he was being led to Maula Prison for remand.
In the notice filed through Lilongwe District Judiciary Registry a day after their conviction, Kasambara and fellow appellants argue that Mtambo erred in law and fact in holding that the prosecution had made out a case to answer for them when the prosecution had failed to prove it.
They also argue that Mtambo erred in law and fact in refusing to recuse himself when there was ample evidence of his being apparently biased against them right from the start of the case up to the time when he suddenly revoked the bail for Kumwembe and Kasambara.
The appellants say the State failed to prove that Kumwembe and Manondo had been identified as the persons at the scene of shooting and that the three had agreed to carry out an unlawful act of killing Mphwiyo.
“And the prosecution’s evidence was so contradictory that it could not make out a prima facie [clear] case of case to answer,” reads the notice of appeal.
In the notice, Mtambo is also accused of erring in law and fact in holding that the mere fact that Manondo and Kasambara were communicating via mobile phones before and after the shooting of Mphwiyo was conclusive evidence that these two were conspiring to kill Mphwiyo.
“The trial judge erred in law in holding that the 1st Appellant [Kumwembe] had not given adequate notice of alibi [explanation] when he told the investigation police officers who were recording his caution statement that at the material time he was at Tete in the Republic of Mozambique,” reads part of the notice.
Kumwembe produced foreign currencies, a stamped passport to demonstrate that he left Malawi and entered Mozambique on August 30, 2013 and left Mozambique and re-entered Malawi on September 14, 2013.
But Mtambo ruled that Immigration Officials’ stamp in the passport of Kumwembe were not admissible as they lacked authentication.
The appellants fault Mtambo for allowing the prosecution to call for rebuttal witness when the evidence that Kumwembe had cited had not produced any new evidence that the prosecution were not aware of.
Mtambo is also faulted for accepting the version of the rebuttal witnesses when the same was discredited in cross-examination.
The High Court Judge is also faulted for holding that Kumwembe and Manondo had been properly identified by call logs as the persons that attempted to kill Mphwiyo when he had already made a finding that there was no proper identification of them by Mphwiyo.
“The trial judge erred in law and fact in holding that there was evidence of conspiracy to commit murder simply because there were call logs showing communication between the 1st and 2nd Appellant [Kumwembe and Manondo] and also the 2nd and 3rd Appellant [Manondo and Kasambara] when the 1st and 2nd Accused denied ever conspiring on the phone and no witness had any information/ evidence as to what the Appellants were talking about on the phone,” one of the grounds for the appeal reads.
They also say Mtambo erred in law in holding that the motive of attempting to kill Mphwiyo was that he was being pressured to make some payments to friends of Kasambara when in fact no evidence was led that any of the alleged beneficiaries were friends of Kasambara.
“Both prosecution’s witnesses and defence witnesses had proved that there were no such threats but that the victim PW 2 [Mphwiyo] and 3rd Appellant [Kasambara] were friends and the trial judge himself had in his ruling of case to answer refused to accept this theory of the case by the prosecution,” it reads.
Judiciary spokesperson, Mlenga Mvula, confirmed the filing of the notice and said the court is making arrangements on the appeal.
“Lilongwe Registry is now compiling all the documents related to the case so that they can be referred to the Supreme Court for hearing. After everything, the court will be able to set the date for the appeal case,” Mvula said.
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